O'Connor v. Hendrick

We think that the portion of the order imposing the condition above mentioned and,appealed from was erroneous. This action was brought by plaintiff to recover for services claimed to have been rendered both by herself and by another, who assigned to her, as school-teachers in the public schools of District No. 9 of the town of Lima. The appellants made a motion to be allowed to intervene and become parties defendant in the action, under the provision of section 452 of the Code of Civil Procedure, upon the grounds, in substance, that they were the owners of real property within said school district which would be affected in case judgment was recovered by the plaintiff, and that the plaintiif and defendant trustee were so acting, collusively that the latter would not properly and in good faith defend this action and protect the interests of the appellants. As appears by the recitals in the order made upon said motion, no opposition whatever was offered by the plaintiff thereto. The defendant trustee did appear, and through his present attorney opposed the granting of said motion. The motion was, however, after due consideration, granted, but upon the condition already referred to. We do not feel that the original underlying question of the right of defendants to be made parties to this action is before us upon this appeal. As already stated, the plaintiff did not, upon the motion, oppose said application, and the learned counsel for the respondent trustee has not, as it seems to us, questioned in his brief the right of the appellants to be made parties, if the court at Special Term, in the exercise of its discretion, deemed it proper to make them such. Moreover, no appeal has been taken from that portion of the order bringing them in. Assuming, therefore, as we must, under these conditions, that the appellants have been properly and rightfully made parties, we simply have before us the query whether it was proper to impose upon them, as a condition of coming in, that they should employ the attorney for the respondent trustee, whose acts and conduct they are criticising and accusing. We think it very clear that we must answer this question in the negative, and assert the law to be that such condition should not have been imposed. Jemmison v. Kennedy, 55 Hun, 47 , 7 N. Y. Supp. 296 . Courts have very uniformly and steadfastly secured to clients the right, under all reasonable conditions, to select and change at will their attorneys; and this rule has been deemed essential to the preservation of those confidential relations which ought to prevail between counsel and client. Tenney v. Berger, 93 N. Y. 524 , 45 Am. Rep. 263 ; In re Paschal, 10 Wall. 483 , 19 L. Ed. 992 ; Dodin v. Huerstel, 85 Hun, 257 , 32 N. Y. Supp. 1013 . But, while no such argument is addressed to us by the briefs of the counsel for the respondents, it is nevertheless suggested that, reaching the conclusion above indicated as to the condition imposed, we still ought not to reverse the order in this respect, and leave it otherwise standing and in force; that the respondents may have been0willing to accept, and therefore not appeal from, the order as a whole, and containing the condition already referred to; and that, this being so, it will be unfair and inequitable to leave them without remedy as against the order when modified by striking out said portion thereof. Answering this suggestion, it seems to us that, in the first place, it may

As already suggested, this action is brought by plaintiff to recover for services alleged to have been performed in teaching in the public schools in the town of Lima. In opposition to her right to recover it is urged that she and her assignor have violated those rules of the Department of Public Education of this state, which rest upon the provisions of the Constitution itself, and forbid that teachers in public schools shall wear any distinctive or distinguishing dress denoting membership in any religious order to which they belong, and that they shall not seek to utilize their position as teachers to press and urge upon the minds of children under their care the religious tenets and doctrine of any sect. It is said that plaintiff and her assignor, while engaged in the pursuit of their duties as teachers, wore the distinctive and distinguishing dress of the religious order of sisterhood known as the “Sisters of St. Joseph,” to which they belonged, and that before and after school hours, while performing their said duties, they taught the religious principles and doctrines of their order. It is asserted that these acts, especially when viewed in the light of various rulings and orders made by the Superintendent of Public Instruction, furnish a defense to the claim in suit. Appellants, then, by their affidavits, vigorously and pointedly attack the attitude of the defendant trustee in this controversy, which has apparently been running some time. They accuse him, through the allegation of specific acts, of an indifference, if not hostility, to the principle that our public schools shall not be subjected by any sect to religious domination, and which, in effect, has been safeguarded by our Constitution. It is true that the trustee endeavors to repel these accusations. But his answer, characterized especially by professions of good intentions, and by forgetfulness of various alleged acts impugning such intentions, does not impress us as indicative of any purpose upon his part to aggressively defend those principles above referred to if this case presents the necessity for so doing. In fairness it is to be noted that no attack is made by appellants upon either the ability or good faith of the attorney who represents him, and who, against their will, has been selected for them by the court. We feel confident that none such could be made. But it is apparent that such attorney must necessarily be more or less subject to the will and' control of his first

If we are correct in the foregoing views, it is unnecessary to consider or lay down as universal the principle that when, upon an appeal by one party, an order has been modified by striking out some portion thereof, it should, as so modified, be affirmed, and allowed to stand as against the party who has not appealed. It very well might be in some .case that the provision reversed or cut out would be so connected with or would so modify the remainder of the order that it would be impossible, or manifestly unjust, to reverse in part and affirm in part. It is sufficient to say that, in our judgment, this case does not present either of these conditions. The relief sought by the original motion is completely covered by and comprehended within the portions of the order not appealed from. The other portion containing the condition is distinct and entire, and may be reversed without in any manner impairing the completeness of the main provision. The only question in this connection relates to the propriety and justice of so doing, and the application of the facts before us to the solution of that leads us to the conclusion already indicated.

Finally, it may be said that the appearance of appellants by separate counsel will subject the plaintiff to double trouble and liability for costs in case of failure. It is to be again noted that she intrusted the opposition upon the original motion to defendant alone, making none herself. In our opinion, she will be protected from any unreasonable burdens incident to .the intervention of these new parties by the imposition of the condition that, in the event of success, they shall not have costs against her.

We therefore conclude that that portion of the order appealed from should be reversed, and the condition thereby imposed removed, and that the order as thus modified should be affirmed, with $io costs and disbursements to appellants, upon condition that they execute a written stipulation not to tax costs against plaintiff. In case of their failure to make such stipulation, the entire order is reversed, without costs.

The appellants made a motion to be made parties defendant in the action, under section 452 of the Code of Civil Procedure, upon the ground that they were the owners of real property within the school district of which the defendant Hendrick is sole trustee, which property would be affected in case judgment was recovered by the plaintiff; and the appellants allege in the moving papers that the plaintiff and the defendant trustee were acting collusively, and therefore that the trustee in the conduct of the action would not properly and in good faith protect the interests of the appellants. The respondents opposed the motion, and insisted that the court had no power to grant the relief asked for. We think their contention is correct, and that the court was without authority of law to grant the relief asked for. Christman v. Thatcher, 48 Hun, 446 , 1 N. Y. Supp. 451 , and cases cited. The court, however, granted the motion, and directed that the appellants be made parties defendant in the action, but only upon condition that they employ a certain attorney named in the order to conduct the litigation for them, who, at the time, was the attorney for the defendant trustee. While in no manner conceding the power or authority of the court to permit the appellants to be made parties to the action, with the condition imposed, the respondents were satisfied with the order as a whole, considered that its effect would be harmless, and therefore did not appeal therefrom. The appellants appeal from so much of the order as imposed the condition. We think it clear that the part of the'order so appealed from was erroneous. The court has no power to compel a party to an action to employ any particular attorney to conduct such action for him. Jemmison v. Kennedy, 55 Hun, 47 , 7 N. Y. Supp. 296 ; Tenney v. Berger, 93 N. Y. 524 , 45 Am. Rep. 263 . The order appealed from consists of two provisions, both of which were made without authority of law, and any party aggrieved by either should have the'opportunity to relieve himself therefrom. With the two provisions standing together, the respondents did not consider that their rights were prejudiced, and for that reason did not appeal, and did not attempt to have the first provision, although illegal, reversed, because, as we have seen, when taken in connection with the condition or the second provision of the order, it was not thought to be harmful. But it is suggested that, the condition of the order, having been appealed from, must be reversed, because made without authority, but that the first provision, although also made without authority, should be permitted to stand, because no appeal has been taken therefrom, and which would only become harmful or prejudicial to the rights of the original parties to the action by striking out the

It seems to me that, as each and every part of the order appealed from is erroneous, and made without authority of law, it should be reversed as a whole, with $io costs and disbursements, and that the motion should be denied, with $io costs.

STOVER, J., concurs in dissent.